United States v. Henderson

United States Court of Appeals
For the First Circuit

No. 01-2392

UNITED STATES OF AMERICA,

Appellee,

v.

CHAMOND HENDERSON, A/K/A "BUTTER,"

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nathaniel M. Gorton, U. S. District Judge]

Before

Selya, Circuit Judge,

Coffin and Bownes, Senior Circuit Judges.

John T. Ouderkirk, Jr., for appellant.
Peter K. Levitt, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, was on brief for
appellee.

February 14, 2003
 BOWNES, Senior Circuit Judge. Defendant-appellant

Chamond Henderson ("Henderson") appeals from a jury conviction on

all five counts of an indictment charging him and two others.

Count One charged Henderson, Robert Carey ("Carey") and Kimberly

Powers ("Powers") with conspiring to possess with intent to

distribute more than 50 grams of crack cocaine, in violation of 21

U.S.C. § 846.1 Counts Two through Five charged Henderson and

Powers with possessing crack cocaine with intent to distribute it

and with distribution in violation of 21 U.S.C. § 841(a)(1) and 18

U.S.C. § 2. Carey was also charged in Count Five.

Henderson and Carey were tried jointly. Both were

convicted and appealed separately. Carey's appeal is also before

us and is the subject of a separate opinion. See United States v.

Carey, No. 01-2439. Powers entered into a plea bargain with the

government and testified at the trial.

I. THE EVIDENCE

We recount the facts as the jury rationally could have

found them, consistent with record support. In October 1998 the

Drug Enforcement Administration ("DEA") began an investigation of

crack cocaine trafficking in Worcester, Massachusetts. The DEA

contacted a known crack cocaine user, Joseph Mozynski ("Mozynski"),

1
Grams and ounces are used interchangeably throughout this
opinion. It should be noted that one ounce equals 28.35 grams.
See United States Sentencing Commission, Guidelines Manual, §
2D1.1, comments. (n.11) (Nov. 2002).

-2-
to serve as a cooperating witness in its investigation. Mozynski

knew Henderson and had seen him once or twice before becoming a

cooperating witness. Mozynski facilitated four purchases of crack

cocaine from Henderson during the course of the investigation.

Henderson and Mozynski were present at all four sales. Two of

these four purchases were made in the basement of the apartment

building in which Henderson lived, 27 Wachusett Street. The other

sales took place within two blocks of Wachusett Street.

A. The First Sale

The sale occurred on October 19, 1998. It took place at

6 Denny Street in Worcester. Carey and Powers were living there at

the time. Mozynski talked to Carey about wanting to buy crack

cocaine and was told by Carey that he could get it from a person

called "Butter." The deal was that Mozynski would pay $1,200 for

25 grams of crack cocaine. Carey was to get $200 for setting up

the sale. It was agreed that Mozynski would pick up the crack

cocaine at 6 Denny Street on October 19.

On that day, Mozynski met with DEA Special Agents Timothy

Anderson and Robert Guerard. They searched him and then wired him

with a concealed monitoring device, enabling the DEA to tape record

the drug transactions, and gave him $1,200. The agents watched

Mozynski enter 6 Denny Street. After he was inside the house, he

was met by Powers, Carey, and a woman named Lynn Cappulett.

Mozynski showed Powers the $1,200 and Powers told Carey to page

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Butter. After speaking to Butter on the phone and telling him that

Mozynski was here with the money, Powers told Mozynski that Butter

would be there within five minutes. Agent Anderson videotaped

Henderson walking down Denny Street and then turning into the

driveway at 6 Denny Street. Mozynski gave Henderson the $1,200 and

received from him a package. Mozynski and Henderson discussed

future transactions, and Henderson told Mozynski to contact him

only through Powers.

A short time after Mozynski had entered 6 Denny Street,

Agent Anderson observed and videotaped him leaving the premises.

Mozynski went straight to the DEA agents and gave them the package

Henderson had given him. Mozynski also made a written statement

describing the events that took place inside 6 Denny Street. As

part of the statement, Mozynski described Henderson as five feet,

ten inches tall, 175 or 180 pounds and of medium complexion. A

couple of minutes later, Agent Anderson observed and videotaped

Henderson leaving 6 Denny Street. A chemical analysis of the

contents of the package given by Mozynski to the DEA agents showed

that it contained 23.7 grams of crack cocaine.

B. The Second Sale

The second sale, which took place on October 27, 1998,

was also a face-to-face purchase by Mozynski. Mozynski met Powers

at 6 Denny Street to purchase three ounces of crack cocaine from

Henderson. After leaving Denny Street, Mozynski and Powers met

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Agent Guerard in the car he used for undercover work. Agent

Guerard said he was a customer of Mozynski. Powers told Guerard to

drive to a nearby location where Powers and Mozynski got out of the

car. Mozynski and Powers met Henderson in the basement of

Henderson's apartment building at 27 Wachusett Street. Mozynski

paid Henderson $3,000 and was given a piece of newspaper containing

a plastic bag. Mozynski then delivered the package to Agent

Guerard, who searched him. The subsequent chemical analysis showed

the substance in the plastic bag contained 73.2 grams of crack

cocaine.

C. The Third Sale

The third sale took place on November 3, 1998. Mozynski

contacted Powers prior to November 3. Powers told him to contact

Butter directly by his pager, which he did. Butter returned the

page; they talked over the phone and agreed to another drug sale

using the same format as the prior sale. On November 3, Mozynski

met Powers at 6 Denny Street. They both met Agent Guerard in his

car. Powers and Mozynski again met Henderson in the basement of

Henderson's apartment building at 27 Wachusett Street. Mozynski

gave Henderson $3,000 and Henderson gave Mozynski a package. The

package was delivered to Agent Guerard. Subsequent analysis

disclosed that the contents of the package contained 81.09 grams of

cocaine. A DEA agent took photos of Powers and Mozynski entering

27 Wachusett Street.

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D. The Fourth Sale

There were actually two more sales. On November 16,

Powers met with Henderson on the street while Mozynski waited a

short distance away. It was dark outside and Mozynski could not

positively identify Henderson. Henderson gave Powers a package,

which Powers gave to Mozynski. Analysis of the package disclosed

that it contained wax, not crack cocaine. Mozynski called Butter

from Carey's apartment the evening of the wax sale. Butter said

that he would give Mozynski the crack cocaine he owed him.

Mozynski then met with Agent Guerard and gave him Butter's pager

number, which Guerard called. The agent spoke to Butter, who

promised that he would give Guerard one ounce of crack cocaine the

next day, November 17, and two and one half ounces the day after,

November 18. The beeper number Agent Guerard used to contact

Butter was listed to "D. Henderson" of "27 Wahusset Street,

Worcester, MA." Henderson, whose middle name is David, lived at

"27 Wachusett Street" in Worcester. On November 17, Powers met

Henderson at 27 Wachusett Street and Henderson gave her a package

to give Mozynski. Powers then met Mozynski and handed him the

package which Mozynski gave to Agent Guerard. An analysis showed

that the package contained 19.68 grams of cocaine.

In addition to this evidence there was testimony by

Powers that she bought crack cocaine from Henderson on a daily

basis throughout the period of the conspiracy; that at times she

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made purchases of crack cocaine several times a day; that she

usually purchased crack cocaine one ounce at a time which she sold

to her customers. Powers further testified that Carey regularly

bought crack cocaine from Henderson during the period of the

conspiracy. She also testified that Carey either used the crack

cocaine himself or resold it to his own customers. Powers and

Carey lived together during most of the conspiracy period.

II. THE ISSUES

We consider the issues in the order set forth in

appellant's brief.

A. The Admissibility of the Identification Testimony

Defendant filed a Motion to Suppress Identifications.

There was a hearing on the motion prior to trial. The district

court denied the motion by a margin notation, "Motion Denied."

There were no findings of facts or rulings of law. "We will uphold

a district court's decision to deny a suppression motion if the

decision is supported by any reasonable view of the evidence."

United States v. Campa, 234 F.3d 733, 737 (1st Cir. 2000). "Our

review of a district court's decision to grant or deny a

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suppression motion is plenary."2 United States v. McCarthy, 77

F.3d 522, 529 (1st Cir. 1996).

There is an additional factor, however, that must be

addressed in our consideration of the pretrial review of the

suppression motion. There were two identification witnesses who

testified at the hearing, Powers and Mozynski. In January 1999,

Mozynski was shown a single booking photo of the defendant.

Mozynski was asked "Who is this?" He replied, "It looks like

Butter." In mid-February 1999, Powers was shown the same photo.

Powers was asked if it was "Butter." She answered, "Yes."

The Supreme Court has dealt directly with this problem.

In Simmons v. United States, 390 U.S. 377, 384 (1968), the Court

held:

Despite the hazards of initial identification
by photograph, this procedure has been used
widely and effectively in criminal law
enforcement, from the standpoint both of
apprehending offenders and of sparing innocent
suspects the ignominy of arrest by allowing
eyewitnesses to exonerate them through
scrutiny of photographs. The danger that use
of the technique may result in convictions
based on misidentification may be
substantially lessened by a course of cross-
examination at trial which exposes to the jury
the method's potential for error. We are

2
We are somewhat hampered in our review of the hearing on the
motion to suppress because there seems to be no complete transcript
of the pretrial hearing. There is an excerpt in the record of that
portion of the hearing devoted to the admission of pawn shop
receipts. It is, of course, the duty of the appellant to make sure
the record is complete. We will do the best we can with what we
have.

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 unwilling to prohibit its employment, either
in the exercise of our supervisory power or,
still less, as a matter of constitutional
requirement. Instead, we hold that each case
must be considered on its own facts, and that
convictions based on eyewitness identification
at trial following a pretrial identification
by photograph will be set aside on that ground
only if the photographic identification
procedure was so impermissibly suggestive as
to give rise to a very substantial likelihood
of irreparable misidentification.

(emphasis added). We have, of course, followed this teaching:

Before excluding identification evidence, the
court must be persuaded that there was a very
substantial likelihood of irreparable
misidentification. A court must also be
mindful that it is only in extraordinary cases
that identification evidence should be
withheld from the jury.

United States v. De Jesus-Rios, 990 F.2d 672, 677 (1st Cir. 1993)

(citations and quotation marks omitted); see also United States v.

Watson, 76 F.3d 4, 6 (1st Cir. 1996); United States v. Guzman-

Rivera, 990 F.2d 681, 682 (1st Cir. 1993).

We use a two-step test to make this determination. See

United States v. Lopez-Lopez, 282 F.3d 1, 10 (1st Cir. 2002). The

first step is to decide whether there was an impermissibly

suggestive procedure. See id. We skip this step because the

government has conceded that the photographic procedure was

suggestive. Our next step is to "decide whether the identification

itself was reliable under the totality of the circumstances,

notwithstanding the suggestive procedure." Id. at 10-11 (quoting

Watson, 76 F.3d at 6). Neal v. Biggers, 409 U.S. 188, 199-200

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(1972), is the keystone case on the determination of identification

reliability. It enumerates five factors in the analysis: (1) the

opportunity of the witness to view the criminal at the time of the

crime; (2) the witness' degree of attention; (3) the accuracy of

the witness' prior description of the defendant; (4) the level of

certainty demonstrated by the witness at the confrontation; (5) the

length of time between the crime and the confrontation.

We make our analysis bearing in mind that "reliability is

the linchpin in determining the admissibility of identification

testimony." Manson v. Brathwaite, 432 U.S. 98, 114 (1977). We

start with the testimony of Mozynski. As far as the first factor,

Mozynski had at least three opportunities to view the defendant

closely. This was not a single event crime. There were three

face-to-face sales by the defendant to Mozynski. In addition,

Mozynski had seen Henderson on one or two occasions before he

started working for the government as an informant.

The next factor is the witness' degree of attention. The

evidence demonstrates that Mozynski had a sufficient degree of

attention; he testified at trial to specific details about the

crack cocaine transactions with Henderson. Mozynski, for example,

described how in one transaction Henderson wore a black, gold and

white football jersey and a baseball hat; Mozynski also remembered

receiving the crack cocaine in a plastic bag wrapped in newspaper.

The third factor is the accuracy of the witness' prior

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description of the criminal. Mozynski's prior description of

Henderson was not perfect. Mozynski described Henderson as

weighing between 175 and 180 pounds when he actually weighed 150

pounds. Mozynski reported that Henderson was five feet, ten inches

tall, when Henderson claims he is five feet, nine inches tall.

Mozynski also said that Henderson had a medium complexion;

Henderson says that he has a dark complexion. We are satisfied,

however, that the other reliability factors are sufficiently

persuasive to defeat any suspicion of unreliability raised by

Mozynski's prior description. See United States v. Flores-Rivera,

56 F.3d 319, 331 (1st Cir. 1995) (other reliability criteria under

Biggers sufficient to overcome unreliability engendered by one

factor); Watson, 76 F.3d at 7 n.1 (upholding district court's

finding that identification was reliable under Biggers where there

was no prior description of the assailant but the witness had ample

opportunity to focus on suspect and identified him within minutes

of the assault).

The fourth factor, the level of certainty demonstrated by

the witness at confrontation, does not give us reason to pause.

Mozynski "remained steadfast in the positiveness of his

identification[]," despite defense counsel's rigorous cross-

examination. Souza v. Howard, 488 F.2d 462, 465-66 (1st Cir.

1973). The fifth Biggers factor is the length of time between the

crime and the confrontation. The last time Mozynski observed

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Henderson was in November 1998. Mozynski identified Henderson's

photograph in January 1999. The six day jury trial ended on April

30, 2001. We do not find that this lapse of time militates against

the reliability of Mozynski's in-court identification given the

strength of the other factors. See Flores-Rivera, 56 F.3d at 331

(seven year gap between crime and identification permissible

because other reliability criteria were sufficiently persuasive);

Drougas, 748 F.2d at 28 (five year gap between crime and

photographic identification permissible because witness spent

considerable time with defendant).

Based on our thorough review of the record and

application of the pertinent law to the facts we rule that

Mozynski's identification of Henderson was sufficiently reliable to

overcome the admittedly suggestive photo showing.

Henderson advances a plethora of reasons why Mozynski's

identification should not pass muster: he argues that Mozynski did

not know the defendant by his actual name; that Mozynski lied to

the government when he said that he had met with Butter on at least

one occasion; that Mozynski wore glasses because he suffered from

blurred vision and double vision; that when shown the photo,

Mozynski stated that "[i]t looks like 'Butter';" that Mozynski was

mistaken as to the weight and complexion of the defendant; and that

"during the entire period of Mozynski's observations of Butter, he

suffered a worsening problem of memory loss."

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 Our conclusion regarding the reliability of Mozynski's

identification makes a detailed examination of each argument

unnecessary. For as the Supreme Court has stated:

Surely, we cannot say that under all the
circumstances of this case there is a very
substantial likelihood of irreparable
misidentification. Short of that point, such
evidence is for the jury to weigh. We are
content to rely upon the good sense and
judgment of American juries, for evidence with
some element of untrustworthiness is customary
grist for the jury mill. Juries are not so
susceptible that they cannot measure
intelligently the weight of identification
testimony that has some questionable feature.

Manson, 432 U.S. at 116 (citation and quotation marks omitted).

Nor need we dwell too long on Powers' identification of

defendant. There was evidence from which it could be found that

she had known Henderson going back to 1994. Powers bought crack

cocaine from Henderson for her own use and resale. She saw

Henderson at her apartment daily during a six month period in 1994,

at times spending an hour or more with him. Powers was present at

all crack cocaine sales to Mozynski, as an ally of Henderson.

During October and November 1998, Powers saw Henderson every day.

Powers' identification of Henderson at the pretrial hearing and at

the jury trial was positive and firm. In addition, we do not think

the gap in time between Powers' last transaction with Henderson and

her identification of Henderson's photograph calls into question

the reliability of her in-court identification, particularly given

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her close interaction with Henderson. See Flores-Rivera, 56 F.3d

at 331; Drougas, 748 F.2d at 28.

Like those made regarding Mozynski, all of the

defendant's arguments pertaining to Powers focus on her

reliability: that she was under the influence of cocaine during

the four sales; that she did not know the amount of money involved

in the sales; that she was unable to tell how the cocaine was

packaged. Suffice it to say that all of these factors were brought

to the jury's attention.

We rule that Powers' testimony was properly submitted to

the jury.

B. The Admissibility of the Pawn Shop Receipt

Henderson alleges that the court below committed

"constitutional error" when it admitted into evidence a pawn shop

sales receipt found in Henderson's wallet when he was arrested.

The pawn shop receipt was signed by Henderson and indicated that

Henderson pawned a watch on March 21, 1998, and redeemed it by

paying $320 on November 6, 1998, just days after the November 3,

1998 drug sale. While Henderson objected at trial to the admission

of the receipt, he did so on relevancy, not constitutional,

grounds. If a new basis for objection is raised for the first time

on appeal, that ground is not subject to harmless error review, and

may only be reviewed for plain error. See United States v. Walsh,

75 F.3d 1, 5 (1st Cir. 1996). Review for plain error requires four

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showings: (1) that an error occurred (2) which was clear or

obvious and which not only (3) affected the defendant's substantial

rights, but also (4) seriously impaired the fairness, integrity, or

public reputation of the judicial proceeding. See United States v.

Gomez, 255 F.3d 31, 37 (1st Cir. 2001).

Henderson attacks the admission of the pawn shop receipt

on the grounds that it both impermissibly shifted the burden of

proof by requiring him to explain where he got the money to redeem

the watch and, at the same time, constituted a "direct statement"

to the jurors that they could make an inference against him based

on his choice not to testify. Both contentions lack merit.

Henderson overlooks the fact that the admission of any evidence

offered by the government in a criminal trial gives the defendant

a reason to testify if he has a basis for rebutting the

government's theory of the case. The jury was properly instructed

both as to the government's burden of proof and as to the

defendant's right to remain silent. In light of these

instructions, we fail to see how the admission of the pawn shop

sales receipt, in and of itself, impermissibly shifted the burden

of proof, or how it invited the jury to draw an inference of guilt

from the defendant's choice not to testify. The district court's

admission of the pawn shop sales receipt did not constitute plain

error.

C. The Remaining Evidence

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 Because we are satisfied that the eyewitness testimony

(including the identification evidence) and pawn shop sales receipt

were sufficient to support Henderson's conviction on all five

counts, we need only address whether there was sufficient evidence

to support the verdict involving proximity to a school zone under

18 U.S.C. § 860. In determining the evidentiary sufficiency of a

guilty verdict, "the relevant question is whether, after viewing

the evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt." United States v. Woodward,

149 F.3d 46, 56 (1st Cir. 1998). "The scope of review is over the

totality of the evidence, both direct and circumstantial." United

States v. Czubinski, 106 F.3d 1069, 1073 (1st Cir. 1997).

Henderson avers that the district court erred when it did

not grant his Rule 29 motion concerning the school zone violations

attendant to the two transactions that took place at 27 Wachusett

Street. In particular, Henderson is "perplexed" by the fact that

the district court denied the motion even though Agent Anderson

testified that the distance from the Elm Park Community School to

27 Wachusett Street was 1,095 feet, which he measured by walking

the sidewalks. As Henderson correctly observes, 1,095 feet exceeds

the statutory 1,000 feet needed to support a conviction in

connection with section 860.

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 Be that as it may, Henderson neglects the fact that the

proper way to determine whether a sale was 1,000 feet or less from

a school is by measuring a straight line, rather than a pedestrian

travel route. See United States v. Soler, 275 F.3d 146, 155 n.6

(1st Cir. 2002) (explaining that "the schoolyard statute envisions

straight-line rather than pedestrian-route measurements"). Here,

the government introduced into evidence, without objection, a map

of the Elm Park Community School area which provided a detailed

illustration of the distance between 27 Wachusett Street, where the

drug transactions took place, and the school. This map

demonstrated that each of the drug transactions occurred within

1,000 feet of the school; the government, in closing argument,

pointed out as much to the jury. We do not hesitate to find that

this evidence was sufficient to support the verdict.

D. The Five Year Limitation Contained in 21 U.S.C. § 851(e)is
Constitutional

On March 9, 2001, the government filed an information

pursuant to 21 U.S.C. § 851(a), notifying Henderson that the

government would seek a twenty year minimum sentence based upon his

1991 South Carolina state court conviction for drug trafficking.

The information charged that, on or about June 13, 1991, Henderson

was convicted in South Carolina state court for distribution of

cocaine. 21 U.S.C. § 851(e) states:

No person who stands convicted of an offense
under this part may challenge the validity of
any prior conviction alleged under this

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 section which occurred more than five years
before the date of the information alleging
such prior conviction.

Because his prior conviction occurred more than five

years before the filing of the government's information, the

district court concluded that the plain language of section 851(e)

precluded Henderson from denying the conviction, see id. § 851(b),

or challenging its validity, see id. § 851(c). Based upon this

prior conviction, Henderson was sentenced to a mandatory minimum of

20 years in prison. See id. § 841(b)(1)(A).

Although we have previously recognized that section

851(e) bars an appellant from challenging the validity of prior

convictions that are more than five years old, see United States v.

Romero-Carrion, 54 F.3d 15, 18 (1st Cir. 1995), we have not, until

now, been asked to decide whether section 851(e) is constitutional.

Henderson now poses the following question of first impression in

this circuit: Does the five year limitation period set forth in 21

U.S.C. § 851(e) violate the Due Process and Equal Protection

Clauses of the Constitution? We hold that it does not.

"We review de novo constitutional challenges to federal

statutes." United States v. Robinson, 137 F.3d 652, 653 (1st Cir.

1998). As an initial matter, Henderson faces the hurdle that no

court has sustained a constitutional challenge to 21 U.S.C. §

851(e), and at least six circuits have found the provision

constitutional on both due process and equal protection grounds.

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See United States v. Reed, 141 F.3d 644, 652 (6th Cir. 1998);

United States v. Prior, 107 F.3d 654, 660-61 (8th Cir.), cert.

denied, 522 U.S. 824 (1997); United States v. Gonzales, 79 F.3d

413, 426-27 (5th Cir.), cert. denied, 519 U.S. 869 (1996); United

States v. Arango-Montoya, 61 F.3d 1331, 1338 (7th Cir. 1995);

United States v. McChristian, 47 F.3d 1499, 1503 (9th Cir. 1995);

United States v. Williams, 954 F.2d 668, 673 (11th Cir. 1992),

cert. denied, 517 U.S. 1157 (1996). He urges us to depart from

this precedent on the ground that some of these circuits have found

section 851(e) constitutional based upon a misplaced reliance on

Custis v. United States, 511 U.S. 485 (1994). According to

Henderson, Custis considered only the constitutionality of 18

U.S.C. § 924(e)(1), and not section 851(e), and therefore has no

bearing on our determination. We disagree.

In Custis, the Supreme Court examined section 924(e)(1),

which provides no statutory right to collaterally challenge state

court convictions that are used to enhance federal sentences under

the Armed Career Criminal Act of 1984. Section 924(e)(1) raises

the penalty for possession of a firearm by a felon from a maximum

of 10 years in prison to a mandatory minimum sentence of 15 years

and a maximum of life in prison without parole if the defendant

"has three previous convictions . . . for a violent felony or a

serious drug offense." The Court held that Congress' omission of

language authorizing collateral attacks in section 924(e)(1)

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indicated that it did not intend to give defendants the right to

challenge the validity of prior convictions under this statute.

Custis, 511 U.S. at 497. Thus, if Congress has the power to

foreclose collateral challenges by merely omitting statutory

language that authorizes such attacks, see 18 U.S.C. § 924(e)(1),

then Congress can certainly preclude collateral challenges after

five years where it explicitly includes such language in a statute.

Notwithstanding, Henderson counters that once Congress

allows the use of collateral challenges, as it has for convictions

less than five years old under section 851(e), any conditions

imposed on the use of those challenges must accommodate fundamental

liberties. He claims that the selection of a particular number of

years to establish a time bar is patently arbitrary, and that the

five year limitations period violates the Equal Protection Clause

because it unfairly discriminates against those who commit a

federal offense more than five years after a prior conviction. His

arguments are not well taken.

The ban against challenging convictions over five years

need only be supported by a rational legislative purpose because no

fundamental right or suspect class is at issue in this case. See

Reed, 107 F.3d at 661. The five year limitation on the right to

collaterally challenge prior convictions at sentencing has a

rational basis in light of both the administrative difficulties

inherent in challenges to prior convictions, such as lost or

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destroyed records, unavailable witnesses, and fading memories, and

the interest in finality. See, e.g., Arango-Montoya, 61 F.3d at

1338. We therefore have no difficulty concluding that section

851(e) does not violate Henderson's right to due process and equal

protection of the law.

E. Closing Argument

Henderson also takes issue with the government's closing

argument. Specifically, he urges that the prosecutor improperly

persuaded the jury to convict him by allegedly interjecting his

personal opinion of the evidence, vouching for a witness, shifting

the burden of proof and inflaming the jury. We address each of his

arguments in turn.

1. Standard of Review

Where, as here, the defendant made no objection to the

government's closing argument at trial, the standard of review is

"plain error." United States v. Hernandez-Vegas, 235 F.3d 705, 710

(1st Cir. 2000). Henderson faces a high hurdle because it is

established that plain error review "is ordinarily limited to

'blockbusters' and does not consider 'the ordinary backfires --

whether or not harmful to a litigant's cause -- which may mar a

trial record.'" United States v. Griffen, 818 F.2d 97, 100.

Henderson bears the burden of demonstrating that the prosecutor's

remarks were prejudicial and affected his substantial rights. Id.

at 55. Even then, error will not be recognized unless it caused a

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"miscarriage of justice" or seriously undermined the "integrity or

public reputation of judicial proceedings." United States v.

Olano, 507 U.S. 725, 736 (1993). We consider whether the

prosecutor's remarks had any likely impact on the jury based on the

entire record, including the closing argument presented by the

defense. See Joyner, 191 F.3d at 55.

2. Personal Opinion of the Evidence

We reject Henderson's argument that the prosecutor

improperly interjected his personal opinion of the evidence when he

characterized as "absurd" the defense's assertion that Powers was

under the influence of drugs during the transactions. A prosecutor

"may attempt to persuade the jury to draw suggested inferences

unfavorable to the defense, as long as the prosecutor's own opinion

as to the witness' credibility is not urged on the jury." United

States v. Smith, 982 F.2d 681, 683 (1st Cir. 1993).

In this case, the prosecutor offered no opinion

concerning the credibility of the defense witnesses. Instead,

during his closing argument, the prosecutor responded to a

persistent suggestion made by the defendant that Powers had been on

drugs during the transactions and thus could not remember the

detailed information she provided during her testimony. The

prosecutor did this by asking the jury to focus on the tape

recordings made of those transactions:

And don't the tapes prove to you how absurd
the defendant's claims are that Powers was too

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 high or too crazy to have accurately perceived
the events which occurred during the
conspiracy? Don't the tapes, in fact, prove
that Powers became suspicious that Special
Agent Guerard might be a cop right after she
met him?

It is apparent that the prosecutor asked the jury to consider

whether the evidence before it -- tape recordings in which Powers

correctly perceived that Mozynski's alleged drug customer was an

undercover police officer -- refuted defendant's contention that

Powers' mind was too altered to observe and remember the drug

transactions. There was nothing improper in the government

identifying for the jury a specific item of evidence and arguing

that the jury should infer from that piece of evidence that the

defendant's theory was not worthy of belief. See United States v.

Mount, 896 F.2d 612, 625 (1st Cir. 1990); United States v. Garcia,

818 F.2d 135, 143 (1st Cir. 1987). Accordingly, the district court

did not commit plain error by allowing the prosecutor's statement.

Henderson challenges other statements in the government's

closing on the ground that the prosecutor again offered his

personal opinion of the evidence when he told the jury:

Look at the evidence with a very stern and
suspicious eye. And if you do that, you'll
have no doubt that the government has
sustained its burden.

Henderson says these statements implied that the jury "could not

return a verdict of not guilty without failing to consider the

evidence closely." What Henderson fails to consider is that a

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prosecutor has a right to comment on the plausibility of the

defense theory. See Garcia, 818 F.2d at 143. Here, the prosecutor

suggested that a careful review of the evidence would reveal that

the government's theory of the case was more plausible than

Henderson's theory of the case. This suggestion properly directed

the jury's attention to the evidence presented at trial.

We also disagree with Henderson that the prosecutor

interjected his personal opinion of the evidence in rebuttal when

he commented "if you ask the wrong questions, you get the wrong

answers," and "if you ask the right questions in this case, there's

no doubt but that their clients will be convicted." These comments

were not inappropriate because "[a]lthough it is the jury's job to

draw inferences, there is nothing improper in the Government's

suggesting which inferences should be drawn." Mount, 896 F.2d at

625.

Here, the prosecutor argued that Henderson's theory of

the case directed the jury to the "wrong" questions, whereas the

government's theory directed it to the "right" questions;

presumably, these were questions based on the evidence. We see no

reason why the prosecutor should be prohibited from suggesting that

the government's theory of the case did a better job of focusing on

the evidence. The prosecutor was entitled to argue that the jury

should look at the evidence to determine Henderson's guilt. We see

no plain error.

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 3. Vouching

Henderson next maintains that the prosecutor vouched for

Powers in his closing argument when he stated that Powers

"repeatedly told you that she was told to tell the truth, to tell

the truth when she took the stand." A prosecutor may not place

"the prestige of the government behind a witness by making personal

assurances about the witness' credibility." United States v. Neal,

36 F.3d 1190, 1207 (1st Cir. 1994).

There were no such personal assurances from the

government in this case. The prosecutor's statement merely

summarized Powers' prior testimony, and was within the accepted

bounds of argument. See United States v. Auch, 187 F.3d 125, 131

(1st Cir. 1999). We note that the prosecutor did not express his

personal opinion about Powers' credibility; nor did the prosecutor

suggest that special circumstances, such as Powers' plea agreement,

ensured her honesty. See United States v. Wihbey, 75 F.3d 761, 772

(1st Cir. 1996); United States v. Dockray, 943 F.2d 152, 156 (1st

Cir. 1991). Furthermore, the prosecutor's statement came after

defense counsel suggested in cross-examination that Powers had been

coached by the government. We find that the prosecutor's statement

did not constitute improper vouching.

4. Shifting the Burden of Proof

Henderson also complains that the prosecutor improperly

commented on his right to remain silent when he responded to

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defense allegations that the government had failed to call a

supposedly percipient witness. It is established that any comment

by a prosecutor on a defendant's exercise of the right to remain

silent violates the Fifth Amendment's guarantee against self-

incrimination. See Wihbey, 75 F.3d at 769.

In the closing argument, defense counsel suggested that

the government was hiding something by not producing Lynn

Cappulett, an individual whom Powers and Mozynski each identified

as having been at Carey's residence during the first drug

transaction on October 19:

[The government] never tracked down Lynn
Cappulett. Mozynski and Powers both said that
she was at 6 Denny Street on October 19, 1998.
And according to Mozynski the first deal
happened right in front of her eyes. Yet, did
you hear any evidence that Agent Anderson or
Agent Guerard ever tried to find her or talk
to her? This was an eyewitness to what went
on inside the building.

In rebuttal, the prosecutor replied:

Where is Lynn Cappulett, both counsel ask you?
Well, that's a good question. Why don't they
tell us? Maybe defense counsel could have
interviewed Lynn Cappulett.

The prosecutor's response was not such that "jurors would

probably interpret it as commentary on the accused's failure to

take the stand," United States v. Taylor, 54 F.3d 967, 979 (1st

Cir. 1995), particularly because it was made in rebuttal after

defense counsel had themselves raised the issue. See United States

v. Nickens, 955 F.2d 112, 122 (1st Cir. 1992) (evaluating effect of

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statement made in rebuttal argument). Under the invited response

rule, if the prosecutor's remarks were "invited," and "did no more

than respond substantially in order to right the scale," such

comments do not warrant reversal. Id. (internal quotations

omitted). Here, defense counsel invited a response by raising the

issue of Lynn Cappulett's whereabouts in the first instance. The

prosecutor's remarks were limited and addressed only the defense

counsel's own comments. See id. at 123. Thus, there was no plain

error when the district court did not, on its own initiative,

strike portions of the government's rebuttal argument.

5. Inflaming the Passions of the Jury

We cannot agree with Henderson that the district court

erred when it did not, on its own initiative, strike the

prosecutor's description of Henderson as "a successful businessman

in the business of crack cocaine," who wanted a "windfall" verdict

in his favor. When the evidence of a defendant's guilt is strong,

a court should be very reluctant to find plain error in "misguided

rhetoric." United States v. Sepulveda, 15 F.3d 1161, 1188 (1st

Cir. 1993). Under plain error review, improper remarks are grounds

for reversal only if they "so poisoned the well that the trial's

outcome was likely affected." Id. (internal quotations omitted).

We place a prosecutor's remarks in context when determining whether

they were inappropriate. See id. at 1187.

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 Henderson posits that the prosecutor's comments

improperly appealed to the passions of the jury. To the contrary,

we fail to see how these remarks would distract the jury from

focusing on whether the evidence established guilt beyond a

reasonable doubt. See United States v. Manning, 23 F.3d 570, 574

(1st Cir. 1994). Defense counsel suggested in his opening that

Henderson was a legitimate businessman; the prosecutor countered

that suggestion by arguing that Henderson was in the business of

selling drugs. Here, defense counsel invited a response by

suggesting that Henderson "worked hard" in the "music promotion

business," and was "successful." The prosecutor, in turn, offered

a reply that was not only supported by the evidence but was

properly limited and addressed only the defense counsel's own

comments. See Nickens, 955 F.2d at 123. There was nothing

improper in this suggestion.

Nor did the district court err when it permitted, as

Henderson claims, the prosecutor to tell the jury that it could

convict him "even if they found that the defendant was not the

distributor of the cocaine." This is somewhat misleading. In his

closing, Henderson's counsel suggested that someone other than

Henderson was the crack cocaine supplier. The prosecutor

responded:

What are the odds that there was a different
supplier in this case in light of the
following facts: First, a person that you
might well find at a minimum bears a striking

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 resemblance to this individual, even if you
don't find that it's him, walks into 6 Denny
Street at the exact time of a crack
distribution on October 19th. Coincidence?

When read in its proper context, it is apparent that this comment,

while unartfully expressed, is innocuous. It certainly would not

suggest to the jury that it could convict the defendant even if it

found that the person alleged to be the supplier of the cocaine was

not the defendant. Furthermore, the court's instructions to the

jury clearly explained that the ultimate question for the jury was

whether Henderson was the supplier of crack cocaine on the dates in

question. We conclude that Henderson's conviction should not be

disturbed on the basis of these statements.

We also disagree with Henderson that the prosecutor

improperly appealed to the passions of the jury during rebuttal by

commenting, with regard to Henderson's defense theory, "[w]hat is

this, the Jerry Springer show?" Given the strong evidence against

Henderson, the prosecutor's "misguided rhetoric," Sepulveda, 15

F.3d at 1188, if it was even that, does not rise to the level of

plain error. See Joyner, 191 F.3d at 55. We conclude that

Henderson's conviction should not be disturbed on account of the

prosecutor's reference to the Jerry Springer show.

F. Co-conspirator's Statements

Henderson argues, in summary fashion, that the only

evidence that indicates he engaged in any conspiracy was the

suggestive identifications of Mozynski and Powers, which, according

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to Henderson, should have been excluded in the first instance.

Because his challenge to the co-conspirator statements is premised

solely on the identifications being improperly admitted, we need

not consider the admissibility of these statements in light of our

conclusion that the district court did not err in admitting the

identifications.

In any event, we are satisfied that even without the

identification testimony the evidence was sufficient for a jury to

conclude that Henderson was part of a conspiracy to sell crack

cocaine. This includes: the videotape of Henderson taken by the

DEA at 6 Denny Street at the October 19, 1998 drug transaction;

Agent Anderson's identification of Henderson; the fact that the

pager used in the drug transactions was subscribed to by D.

Henderson of 27 Wahuset Street in Worcester; and the fact that

Henderson lived at 27 Wachusett Street, where two of the drug

transactions took place. This evidence, aside from the

identifications of Mozynski and Powers, was sufficient for a

rational trier of fact to find Henderson guilty beyond a reasonable

doubt. See United States v. Loder, 23 F.3d 586, 589 (1st Cir.

1994).

G. Jury Instructions

Henderson alleges three errors in the district court's

jury instructions, which he believes "incorrectly diminished the

evidentiary requirements for finding the defendant guilty."

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Specifically, he challenges the jury instructions concerning

identification, aiding and abetting and conspiracy. We review for

"plain error" because Henderson did not raise his objections to the

jury instructions at trial. See Gomez, 255 F.3d at 37.

Turning to the identification instruction, we begin by

noting that the district court provided a lengthy instruction:

Identification testimony is an expression of
belief or impression by the witness. Its
value depends on the opportunity the witness
had to observe the offender at the time of the
offense and to make a reliable identification
later. Whether the witness had an adequate
and effective opportunity to observe the
offender at the time of the offense may be
affected by such matters as: (1) how long or
short a time was available; (2) how far or
close the witness was to the scene of the
offense; (3) how good was the lighting; (4)
whether the witness was under the influence of
drugs; and (5) whether, and the extent to
which, the witness had occasion in the past to
see or know the person identified. If the
identification by the witness may have been
influenced by circumstances under which an
image of the defendant was presented to the
witness for identification, you may consider
those circumstances as well. You may also
take into account that an identification made
by picking the defendant out of a group of
similar individuals is generally more reliable
than one which results from the presentation
of an image of the defendant alone to the
witness.

Henderson, without citing any authority, complains that

this instruction "fell far short of the detail required by this

case." We disagree. Contrary to Henderson's view, the instruction

was thorough and suitably focused on the reliability of the

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identification as contemplated by the case law. See Manson, 432

U.S. at 114 ("[R]eliability is the linchpin in determining the

admissibility of identification testimony"); Lopez-Lopez, 282 F.3d

at 10-11; Watson, 76 F.3d at 6. The district court was not

required to accept Henderson's alternative instruction because its

own instruction was proper. See United States v. Arcadipane, 41

F.3d 1, 8 (1st Cir. 1994) (a defendant "is not entitled to the

nuances of phrasing that he finds most soothing").

Henderson further avers that the district court's aiding

and abetting instruction permitted the jury to convict without

finding specific intent. See Loder, 23 F.3d at 591 (discussing

specific intent requirement for aiding and abetting). In order to

sustain a conviction for aiding and abetting the government must

prove, in addition to the commission of the offense by the

principal, that the defendant consciously shared the principal's

knowledge of the underlying criminal act, and intended to help the

principal. See United States v. Spinney, 65 F.3d 231, 235 (1st

Cir. 1995).

With this in mind, the district court instructed the jury

that, inter alia, the government must prove beyond a reasonable

doubt, first that someone committed the charged crime, and second,

that the defendant then under consideration
willfully associated himself in some way with
the crime and willfully participated in it as
he would in something he wished to bring
about. This means that the government must
prove that the defendant consciously shared

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 the other person's knowledge of the underlying
criminal act and intended to help him.

This is all the law requires; the district court's instruction

adequately set forth the elements of aiding and abetting.

Finally, Henderson asserts that the conspiracy

instruction allowed the jury to convict him without finding the

necessary intent. This argument is without merit. To prove intent

for conspiracy, the government must prove beyond a reasonable doubt

that the defendant intended to join in the conspiracy and intended

the substantive offense to be committed. See Gomez, 255 F.3d at

35. The district court properly instructed the jury on the

requisite intent to support a conspiracy conviction:

The government must prove two kinds of intent
beyond a reasonable doubt before Chamond
Henderson . . . can be said to have willfully
joined the conspiracy: an intent to agree and
an intent, whether reasonable or not, that the
underlying crime be committed.

This formulation accurately states the requisite intent needed for

a conspiracy conviction. See United States v. Rivera-Santiago, 872

F.2d 1073, 1079 (1st Cir. 1989). Accordingly, we are confident

that the jury instructions do not constitute plain error.

H. Apprendi

Henderson's last argument is that the Supreme Court's

decision in Apprendi v. New Jersey, 530 U.S. 466 (2000), requires

the government to prove his 1991 South Carolina conviction beyond

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a reasonable doubt. Our review is de novo. See United States v.

Sacko, 247 F.3d 21, 24 (1st Cir. 2001).

We have consistently observed with a "regularity

bordering on the monotonous," that Apprendi does not apply to

sentencing enhancements based on prior convictions. United States

v. Moore, 286 F.3d 47, 50 (1st Cir. 2002); see also United States

v. Bradshaw, 281 F.3d 278, 294 (1st Cir. 2002); United States v.

Gomez-Estrada, 273 F.3d 400, 402 (1st Cir. 2001). Accordingly, we

reject Henderson's argument.

Affirmed.

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